In any given year, one in five Canadians experiences a mental health or addiction problem, according to a 2011 report from the Mental Health Commission of Canada.
Although mental illness is often invisible, we should not underestimate its prevalence in society. Despite the growing popularity of mental health campaigns such as “Bell Let’s Talk,” mental illness remains a highly stigmatized issue. Employees are often reluctant to confide in their employers about mental health issues due to a fear of losing or jeopardizing their job, facing judgment from colleagues, or being too embarrassed to ask for accommodations.
As an employer, navigating the fine lines of mental health can be quite challenging, especially since mental disabilities are usually more difficult to detect than physical ones.
Typically, an employee has a responsibility to inform his employer he requires an accommodation because of a disability. However, as outlined in the Ontario Human Rights Commission’s Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions, where an organization is aware, or reasonably ought to be aware, that there may be a relationship between a disability and someone’s job performance, the employer has a “duty to inquire” into that possible relationship before making a decision that would affect the person adversely, such as disciplining or terminating the employee.
This procedural dimension of the duty to accommodate is known as the “duty to inquire.” This obligation exists to protect employees with mental health issues from discriminatory treatment by their employers.
Attendance or behavioural issues
So, in what circumstances does the duty to inquire arise? An employer may notice an employee has been absent from work more often or has been acting unusually erratic. In addition to attendance and behavioural issues, the employee may also exhibit performance issues. These could all be signs of a mental illness.
Even if the employer has not been formally advised of the mental illness, if it suspects an employee may have a mental illness based on changes in her behaviour, then the duty to inquire arises. And before disciplining an employee — especially a termination — the employer must make meaningful inquiries into whether and how the employee can be accommodated.
For example, in the 2006 Mellon v. Human Resources Development Canada 2006, an employee’s normal behaviour and work performance changed. The employer noticed she was crying at work and she mentioned she was stressed at work. The employer terminated the employee. The Canadian Human Rights Tribunal concluded the employer should have inquired after noticing a change in the employee’s performance and attitude.
It is also important to note that many people with substance abuse problems will not admit to having an addiction, which is considered a disability under human rights laws. Dealing with this kind of situation is particularly difficult, especially when there are signs of substance abuse (such as a change in physical appearance or personal hygiene issues). Nevertheless, the employer has a duty to inquire in some cases about an employee’s potential addiction.
If an employer is aware of facts suggesting a mental health issue exists, the duty to inquire before disciplining or terminating the employee can be triggered, even if the worker does not openly disclose the disability.
For example, in the 2008 Krieger v. Toronto Police Services Board in Ontario, a police officer was involved in a traumatic incident where he struggled with a suspect who carried a handgun. The officer began experiencing post-traumatic stress disorder (PTSD) symptoms. Shortly after this, the officer overreacted to another incident. The employer fired him for the overreaction. But the Ontario Human Rights Tribunal found the employer believed the officer could be experiencing PTSD, and took no steps to accommodate him.
As evidenced in the 2010 McLean v. DY 4 Systems in Ontario, an employer cannot deny the existence of a disability by relying on its own failure to inquire, especially when it is aware of facts that suggest the employee has an illness. The mere fact that an employee does not formally request accommodation does not release the employer of its duty to inquire into whether the person requires accommodations.
It is also important to note employees are not required to disclose their exact diagnosis to receive accommodations for their mental illness. If an employee provides a medical note to his employer that does not specify the employee’s exact mental illness, the employer still has a duty to inquire and request further information about the medical condition. This information is required to determine the most appropriate accommodation.
In the 2012 Lombardi v. Walton Enterprises in Ontario, the employer argued that the medical note submitted by the applicant failed to specifically identify he was being treated for depression and a hypothyroid condition. The employer was already aware from other incidents that the employee was depressed and having suicidal ideas. However, if the employer wanted further information, it had both the right and the duty to inquire.
The tribunal concluded that while an employer has a right to require that an employee provide medical documentation in order to properly fulfill the duty to accommodate, the employer cannot sit passively, fail to inquire about this information and, on that basis, refuse accommodation because of a lack of relevant information.
When employers inquire about an employee’s mental illness, they can request relevant information about the employee’s disability. This includes information about the employee’s current medical condition, her ability to perform job duties, and her capacity to perform alternate work duties.
Given the prevalence of mental illness in Canadian society, if an employer has a wellness program or short-term disability benefit plan, then making employees aware of these benefits on a regular basis will increase the chance these benefits will be accessed.
Accommodating a mental illness not only benefits the employee, it also makes good business sense. Enabling employees with mental illness to access support can increase their productivity in the workplace. Furthermore, if individuals with a mental illness are able to receive treatment early, then long-term disability costs may be avoided.
Both at MacLeod Law Firm in Toronto, Douglas MacLeod is the principal and Fiona Martyn is a student-at-law. For more information, visit www.macleodlawfirm.ca.
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